State v. Bryant

IN THE UTAH COURT OF APPEALS

‐‐‐‐ooOoo‐‐‐‐

State of Utah, ) OPINION
)
Plaintiff and Appellee, ) Case No. 20090107‐CA
)
v. ) FILED
) (September 20, 2012)
Marc Clifton Bryant, )
) 2012 UT App 264
Defendant and Appellant. )

‐‐‐‐‐

Fifth District, St. George Department, 041500625
The Honorable James L. Shumate

Attorneys: Kenneth L. Combs, St. George, for Appellant
Mark L. Shurtleff and Ryan D. Tenney, Salt Lake City, for Appellee

‐‐‐‐‐

Before Judges Davis, Thorne, and Christiansen.

THORNE, Judge:

¶1 Marc Clifton Bryant appeals from his convictions of multiple crimes, including
aggravated kidnapping and rape, resulting from his sexual and physical abuse of a
fifteen‐year‐old girl, B.S. We partially vacate the district court’s sentencing order and
remand for further sentencing proceedings, but we otherwise affirm Bryant’s
convictions and sentence.

BACKGROUND

¶2 Bryant first met B.S., the daughter of one of his friends, when B.S. was eleven
years old and Bryant was thirty‐nine. In July 2003, when she was fifteen, B.S. stayed at
Bryant’s home for two weeks to babysit his younger children while he was at work. On
the morning of the day that B.S. was to return home, Bryant asked her if she would
have sex with him. B.S. did not want to have sex with Bryant, but she allowed him to
have intercourse with her anyway. Shortly thereafter, Bryant suggested to B.S.’s mother
(Mother) that the two families should move in together to share expenses. Mother
agreed, and she, Bryant, and their children all moved into a home in St. George.

¶3 Mother worked evenings, leaving Bryant home alone with the children during
much of that time. Bryant and B.S. would sometimes use alcohol and
methamphetamine together. Mother suspected that some sort of illicit relationship was
developing between Bryant and B.S., but both of them denied this when Mother
inquired. Shortly before Christmas 2003, Bryant again asked B.S. to have sex with him,
and she did so.

¶4 In late March or early April 2004, Bryant got angry with B.S. when she told him
that she needed to go to school early to work on a science project. Bryant did not
believe her and accused her of wanting to go to school early to “flirt with boys.” During
the next week, Bryant remained angry with B.S., verbally abused her, and accused her
of lying to him. About a week after the science project dispute, Bryant confronted B.S.
about her alleged lying. When she said she did not want to talk about it, Bryant
attacked her and proceeded to abuse and torture her for the rest of the night. This
included Bryant shackling B.S. and handcuffing her to her bed, burning her face and
arm with a heated screwdriver, holding her head underwater in the bathtub, and
choking her. When Bryant realized that Mother would soon return home from work,
Bryant placed the bound B.S. into his van and drove her to a remote area, where he
continued to burn, punch, and choke her.

¶5 At some point, Bryant left the van to smoke, and when he returned he asked a
bloodied B.S. what had happened to her. She answered, “You did this to me.” Bryant
said he was sorry and attempted to clean up the blood with napkins. He then took her
home, where he had sex with her again. Early the next morning, Bryant woke Mother
and showed her B.S.’s injuries. B.S. did not want to contact police, and Mother later
claimed that she was afraid to do so. It was not until May 2004, approximately two
months after the attack, that Mother and B.S. moved out of the home and reported
Bryant’s attack on B.S. to the police.

¶6 Bryant was initially charged with one count of aggravated kidnapping, one count
of child abuse, and one count of issuing a terroristic threat. After the sexual activity
between B.S. and Bryant came to light, Bryant was additionally charged with three

20090107‐CA 2
counts of rape, one count of witness tampering, and one count of criminal solicitation.
Bryant was tried in absentia before a jury and convicted in April 2008.1

¶7 The State and the defense team both spent a great amount of effort to have
Bryant’s son, DJ, testify at trial. Nevertheless, DJ did not appear at trial. The district
court concluded that the parties and court had done everything possible to procure DJ’s
attendance but that he was unavailable. The district court accordingly granted the
State’s request to use DJ’s preliminary hearing testimony and allowed the State to play
the video of that testimony for the jury. Other trial witnesses included B.S. and Mother.
The jury found Bryant guilty of aggravated kidnapping, child abuse, three counts of
rape, witness tampering, criminal solicitation, and issuing a terroristic threat.

¶8 Bryant was present for his sentencing, during which the district court
commented that in thirty‐four years and thousands of criminal cases, it had “seen very
few instances of such horrific conduct.” Because the jury found that Bryant had
inflicted serious bodily injury upon B.S. during the attack, the district court sentenced
Bryant to life in prison without parole for the aggravated kidnapping count. See Utah
Code Ann. § 76‐5‐302(3)(b) (Supp. 2007) (authorizing life without parole as a sentence
for aggravated kidnapping if “the trier of fact finds that during the . . . kidnapping the
defendant caused serious bodily injury to another”). The district court then concluded
that, because it had relied on B.S.’s injuries as the basis of its aggravated kidnapping
sentence, Bryant’s child abuse conviction necessarily merged into the kidnapping
conviction to avoid a double punishment for injuring B.S. Accordingly, the district
court imposed “no sentence” for the child abuse conviction. The district court
sentenced Bryant to consecutive prison sentences on each of his other convictions.
Bryant appeals.

ISSUES AND STANDARDS OF REVIEW

¶9 Bryant first argues that his sentence of life without parole for aggravated
kidnapping is excessive, particularly when viewed in light of his other consecutive
sentences. “The [district] court has substantial discretion in conducting sentencing
hearings and imposing a sentence, and we will in general overturn the [district] court’s

1. The reasons for Bryant’s trial in absentia are unclear. However, Bryant raises no
argument that the district court committed any error by conducting the trial in his
absence.

20090107‐CA 3
sentencing decisions only if we find an abuse of discretion.” State v. Patience, 944 P.2d
381, 389 (Utah Ct. App. 1997) (citations omitted). However, a sentence that “is beyond
the authorized statutory range” constitutes an illegal sentence that may be corrected at
any time. See State v. Thorkelson, 2004 UT App 9, ¶ 15, 84 P.3d 854.

¶10 Second, Bryant argues that his counsel was ineffective for failing to investigate
the possibility that Bryant was mentally ill. “An ineffective assistance of counsel claim
raised for the first time on appeal presents a question of law, which we review for
correctness.” State v. Fowers, 2011 UT App 383, ¶ 15, 265 P.3d 832 (internal quotation
marks omitted).

¶11 Third, Bryant claims that he was subjected to double jeopardy when he was
convicted of both aggravated kidnapping and child abuse. “A claimed violation of
double jeopardy protections is ‘a question of law that we review for correctness.’” State
v. Escamilla‐Hernandez, 2008 UT App 419, ¶ 7, 198 P.3d 997 (quoting State v. Kell, 2002
UT 106, ¶ 61, 61 P.3d 1019).

¶12 Fourth, Bryant argues that DJ was inappropriately deemed to be unavailable for
the purpose of presenting his preliminary hearing testimony to the jury at trial. We
review a district court’s determination that a witness is unavailable for abuse of
discretion. See State v. Carter, 888 P.2d 629, 646 (Utah 1995).

¶13 Finally, Bryant challenges the district court’s decision not to provide a lesser
offense jury instruction on the rape charges. Bryant also maintains that the district
court incorrectly instructed the jury on the question of whether he was in a position of
special trust with respect to B.S., and specifically, whether he was an “adult co‐
habitant” of Mother. “Claims of erroneous jury instructions present questions of law
that we review for correctness.” State v. Jeffs, 2010 UT 49, ¶ 16, 243 P.3d 1250. “We
therefore review the instructions given to the jury without deference to the [district]
court.” Id.

ANALYSIS

I. Life Without Parole for Aggravated Kidnapping

¶14 Bryant first argues that his sentence of life without parole for aggravated
kidnapping is excessive. Notwithstanding the district court’s comments about the
severity of his conduct, Bryant argues that the State failed to prove that he had inflicted

20090107‐CA 4
serious bodily injury on B.S. and that life without parole in conjunction with his other
consecutive sentences constitutes cruel and unusual punishment. We need not address
Bryant’s arguments, however, as we agree with the State that life without parole was
not a permissible sentencing option for the aggravated kidnapping that Bryant
committed in 2004.

¶15 At the time Bryant committed his crimes, life without parole was not a
sentencing option for the crime of aggravated kidnapping. Rather, that crime was
punishable only “by imprisonment for an indeterminate term of not less than 6, 10, or
15 years and which may be for life.” Utah Code Ann. § 76‐5‐302(3) (2003). It was not
until 2007 that Utah Code section 76‐5‐302 was amended to provide for a sentence of life
without parole “if the trier of fact finds that during the course of the commission of the
aggravated kidnapping the defendant caused serious bodily injury to another.” See id.
§ 76‐5‐302(3)(b) & amend. notes (2008). The State concedes that the district court erred
when it sentenced Bryant under the 2007 version of the statute rather than the 2003
version.

¶16 The State’s concession is well taken. Despite Bryant’s crimes having been
committed in 2004, the district court applied the 2007 version of the statute to sentence
him to life without parole for aggravated kidnapping causing serious bodily injury. So
applied, the 2007 amendment constituted an impermissible ex post facto application of
law in regard to Bryant. See generally Monson v. Carver, 928 P.2d 1017, 1026 (Utah 1996)
(“An ex post facto law is one . . . which makes more burdensome the punishment for a
crime, after its commission . . . .” (internal quotation marks omitted)); see also State v.
Clark, 2011 UT 23, ¶ 11 & n.5, 251 P.3d 829 (discussing ex post facto laws and Utah’s
statutory bar against retroactive application of amendments). Bryant should properly
have been sentenced under the 2004 version of Utah Code section 76‐5‐302, and because
his aggravated kidnapping sentence exceeded the statutory range permitted in 2004, the
sentence of life without parole constitutes an illegal sentence that must be vacated. See
generally State v. Thorkelson, 2004 UT App 9, ¶ 15, 84 P.3d 854 (“A ‘patently’ or
‘manifestly’ illegal sentence generally occurs in one of two situations: (1) where the
sentencing court has no jurisdiction, or (2) where the sentence is beyond the authorized
statutory range.”).

¶17 The district court’s misapplication of the 2007 aggravated kidnapping statute
also resulted in its ruling that Bryant’s child abuse conviction merged into his
kidnapping offense. Despite not bringing a cross‐appeal, the State asks us to reverse the
district court’s merger ruling and reinstate Bryant’s child abuse conviction in light of
the reversal of his aggravated kidnapping sentence. Bryant opposes the reinstatement

20090107‐CA 5
of his child abuse conviction, arguing that the State did not cross‐appeal the issue and
that an increased sentence on that conviction after appeal would violate his double
jeopardy rights. We are not persuaded by Bryant’s arguments and reverse the district
court’s merger ruling.

¶18 Despite the State’s failure to cross‐appeal, our acceptance of the State’s
concession “logically require[s] that the lower court’s decision be modified” by
reinstating Bryant’s child abuse conviction. See State v. South, 924 P.2d 354, 356 n.4
(Utah 1996) (noting an exception to the requirement of a cross‐appeal “when, although
an appellee does not request a change in the lower court’s decision, the appellee’s
argument would nevertheless logically require that the lower court’s decision be
modified”). The only reason that the district court merged Bryant’s aggravated
kidnapping and child abuse convictions was out of a concern that Bryant not be
punished twice for the same act of serious bodily injury. The 2004 aggravated
kidnapping statute contains no enhancement for serious bodily injury, allowing only for
“an indeterminate term of not less than 6, 10, or 15 years and which may be for life,”
regardless of any injury caused by the defendant during the crime. See Utah Code Ann.
§ 76‐5‐302(3) (2003). The district court’s merger ruling resulted from its erroneous
application of the 2007 aggravated kidnapping statute, which increased Bryant’s
sentence to life without parole based on the serious physical injury to B.S, which was
also an element in Bryant’s child abuse conviction. Thus, our determination that the
2004 statute governs Bryant’s aggravated kidnapping sentence necessarily suggests
revisitation of the district court’s merger ruling despite the State’s failure to cross‐
appeal.

¶19 Bryant also fails to establish that reinstatement of his child abuse conviction will
expose him to double jeopardy. Bryant argues that any sentence imposed on the child
abuse conviction will necessarily violate the prohibition on increased sentences after
appeal. See generally Utah Code Ann. § 76‐3‐405(1) (2008). However, the district court
never imposed a sentence on Bryant’s child abuse conviction because of its merger
ruling. Thus, there is no sentence to increase on remand. In any event, the merger was
the result of legal error by the district court and there is no double jeopardy violation
created when we correct that error and reinstate the jury’s verdict. See generally United
States v. Wilson, 420 U.S. 332, 344–45 (1975) (“[Where] reversal on appeal would merely
reinstate the jury’s verdict, review of such an order does not offend the policy against
multiple prosecution[s].”); State v. Harrison, 2011 UT 74, ¶ 16, 269 P.3d 133 (“If a
defendant benefits from an error of law at trial that can be ‘corrected without subjecting
him to a second trial before a second trier of fact,’ that error can be corrected without
implicating double jeopardy.” (quoting Wilson, 420 U.S. at 345)).

20090107‐CA 6
¶20 Because we determine that life without parole was not an available sentencing
option for an aggravated kidnapping committed in 2004, we vacate Bryant’s sentence of
life without parole on the aggravated kidnapping offense. We also reverse the district
court’s determination that Bryant’s child abuse conviction merged into his aggravated
kidnapping conviction.2 These actions require that Bryant be resentenced on his
aggravated kidnapping conviction and given an initial sentence on the child abuse
conviction. Therefore, we remand this matter to the district court for further sentencing
proceedings on these two convictions under the applicable statutes in effect in 2004.

II. Ineffective Assistance of Counsel

¶21 Bryant next argues that his trial counsel provided ineffective assistance when he
failed to investigate Bryant’s potential mental illness as a defense or a mitigating factor
at sentencing. To demonstrate ineffective assistance of counsel, “a defendant must
show (1) that counsel’s performance was so deficient as to fall below an objective
standard of reasonableness and (2) that but for counsel’s deficient performance there is
a reasonable probability that the outcome of the trial would have been different.”
Wickham v. Galetka, 2002 UT 72, ¶ 19, 61 P.3d 978 (internal quotation marks omitted); see
also Strickland v. Washington, 466 U.S. 668, 686–87 (1984).

¶22 “The proper measure for determining whether an attorney’s representation was
deficient is ‘simply reasonableness under prevailing professional norms.’” Taylor v.
State, 2012 UT 5, ¶ 54, 270 P.3d 471 (quoting Strickland, 466 U.S. at 688). “There is a
strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. (internal quotation marks omitted). “‘To show prejudice in
the ineffective assistance of counsel context, the defendant bears the burden of proving
that counsel’s errors actually had an adverse effect on the defense and that there is a
reasonable probability that, but for counsel’s errors, the result of the proceeding would
have been different.’” State v. Fowers, 2011 UT App 383, ¶ 21, 265 P.3d 832 (quoting
State v. Munguia, 2011 UT 5, ¶ 30, 253 P.3d 1082). It is not necessary for a reviewing
court to address both prongs of the ineffective assistance test “if [a defendant] makes an

2. Other than determining that it is not supported under the applicable 2004 statutes,
we express no opinion on the correctness of the district court’s merger ruling. That is,
we do not address the question of whether or when, under the 2007 statutes, a child
abuse conviction merges into a conviction for aggravated kidnapping causing serious
bodily injury.

20090107‐CA 7
insufficient showing on one.” State v. Millard, 2010 UT App 355, ¶ 15, 246 P.3d 151
(internal quotation marks omitted); see also State v. Bair, 2012 UT App 106, ¶ 49, 275 P.3d
1050 (“[B]ecause both deficiency and prejudice must be shown, a reviewing court can
dispose of an ineffectiveness claim on either ground.” (internal quotation marks
omitted)).

¶23 Here, we determine that Bryant has failed to establish prejudice arising from trial
counsel’s alleged failings.3 To prevail on his ineffective assistance claim, Bryant must
show prejudice as “a demonstrable reality and not a speculative matter.” See State v.
Chacon, 962 P.2d 48, 50 (Utah 1998) (internal quotation marks omitted). There can be no
prejudice from counsel’s failure to investigate Bryant’s mental health unless Bryant can
show that he did indeed have some mental condition that would have been relevant to
his guilt or sentencing. Cf. State v. Bradley, 2002 UT App 348, ¶ 65, 57 P.3d 1139
(rejecting a failure to investigate claim for lack of demonstrated prejudice where the
defendant “[did] not offer any evidence about who these potential witnesses are or
what their testimony would entail”). However, Bryant has failed to identify any
evidence of the mental condition that counsel allegedly failed to discover. Instead,
Bryant argues on appeal that a handful of statements elicited from B.S. at trial suggest
that he was mentally ill when he committed his crimes.4

¶24 If there is actual evidence of Bryant suffering from mental illness, the appropriate
method of placing such evidence before this court at this point would be via a rule 23B
remand for an evidentiary hearing. See generally Utah R. App. P. 23B(a) (“A party to an

3. Our disposition of Bryant’s ineffective assistance claim on the prejudice prong is not
intended to suggest that Bryant’s counsel’s performance fell below reasonable
professional standards. Cf. Archuleta v. Galetka, 2011 UT 73, ¶ 131, 267 P.3d 232
(“‘[C]ounsel is not ineffective if he or she has no reason to think that a mental
examination would be useful.’” (alteration in original) (quoting Riley v. Taylor, 277 F.3d
261, 306 (3d Cir. 2001))).

4. These statements, as paraphrased by Bryant on appeal, include B.S.’s testimony that
Bryant’s demeanor “changed completely” after he left her alone in his van after
kidnapping and abusing her; that when he returned fifteen to twenty minutes later, he
asked her what had happened to her; and that she “realized he had not been in his right
mind.” B.S.’s actual testimony was that when Bryant asked her what had happened to
her, she “thought maybe he wasn’t in his right state of mind.” B.S. also responded
affirmatively when asked, “So at that point, had [Bryant’s] demeanor changed?”

20090107‐CA 8
appeal in a criminal case may move the court to remand the case to the trial court for
entry of findings of fact, necessary for the appellate court’s determination of a claim of
ineffective assistance of counsel.”). However, Bryant has not requested a rule 23B
remand on this issue.5 Further, “[t]he purpose of Rule 23B is for appellate counsel to
put on evidence he or she now has, not to amass evidence that might help prove an
ineffectiveness of counsel claim.” State v. Johnston, 2000 UT App 290, ¶ 7, 13 P.3d 175
(per curiam); see also Utah R. App. P. 23B(a) (“The motion shall be available only upon a
nonspeculative allegation of facts . . . .”). A remand under these circumstances, where
Bryant has not identified what evidence of mental illness he would be able to establish
below, would amount to an improper “fishing expedition.” See State v. Garrett, 849 P.2d
578, 581 (Utah Ct. App. 1993).

¶25 Bryant has not identified any record evidence indicating that he suffers from
mental illness in some relevant way that his trial counsel failed to discover. Further,
Bryant has neither requested a rule 23B remand nor identified specific facts pertaining
to his alleged mental illness to warrant such a remand. Under these circumstances,
Bryant’s claim that effective counsel could have used mental illness as a defense or a
mitigating factor at sentencing is pure speculation that will not support a claim of
ineffective assistance of counsel. See generally Chacon, 962 P.2d at 50. Accordingly, we
reject Bryant’s ineffective assistance of counsel argument.

III. Double Jeopardy

¶26 Next, Bryant argues that his double jeopardy rights were violated when he was
convicted of both aggravated kidnapping and child abuse. See generally State v. Harris,
2004 UT 103, ¶ 24, 104 P.3d 1250 (stating that the Utah and federal double jeopardy
clauses “protect[] a defendant from (1) a second prosecution for the same offense after
acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple
punishments for the same offense” (internal quotation marks omitted)). In particular,
Bryant argues that he was punished twice for the same act of serious bodily injury

5. Bryant does request a rule 23B remand in his reply brief for purposes of exploring
several other allegations of ineffective assistance of counsel, allegations that he raises for
the first time in his reply brief. However, we will not address arguments raised for the
first time in an appellant’s reply brief. See State v. Weaver, 2005 UT 49, ¶ 19, 122 P.3d 566
(stating that matters raised for the first time in a reply brief will not be considered); see
also Utah R. App. P. 24(c) (“Reply briefs shall be limited to answering any new matter
set forth in the opposing brief.”).

20090107‐CA 9
because that injury served to both establish his child abuse offense and enhance his
sentence for aggravated kidnapping to life without parole. Bryant argues that this
constitutes a double jeopardy violation that “prejudiced [him] because it caused the
jury’s verdict to be undermined since they were given the ability to convict him on . . .
multiple charges instead of a single charge for the same incident and elements.”

¶27 To a large extent, Bryant’s double jeopardy argument is resolved by our
disposition of his aggravated kidnapping sentence. See supra ¶¶ 14–20. As we have
previously stated, Bryant should have been sentenced under the version of Utah Code
section 76‐5‐302 in effect in 2004, which did not include a sentencing enhancement for
the infliction of serious bodily injury during a kidnapping. See generally Utah Code
Ann. § 76‐5‐302 (2003). Accordingly, our decision today vacates Bryant’s aggravated
kidnapping sentence, reverses the district court’s merger of his child abuse and
aggravated kidnapping convictions, and remands this matter for resentencing on both
of those counts. This disposition obviates any potential double jeopardy problem
arising from the district court’s erroneous enhancement of Bryant’s aggravated
kidnapping sentence because the 2003 aggravated kidnapping statute under which
Bryant will be resentenced does not contain a serious bodily injury element.

¶28 Bryant also argues that the jury’s verdict was undermined because the jury was
not instructed that it could not convict Bryant of both child abuse and enhanced
aggravated kidnapping based on the same act of infliction of serious bodily injury. To
the extent Bryant is correct that double jeopardy considerations would preclude such a
result, see supra ¶ 20 note 2, the jury in this case was not asked to decide whether
Bryant’s act of aggravated kidnapping resulted in serious bodily injury. Rather, the jury
was correctly instructed on the elements of child abuse, which included an element of
“serious physical injury,” and aggravated kidnapping, which contained no physical
injury element. See generally Utah Code Ann. § 76‐5‐109 (2003) (child abuse); id. § 76‐5‐
302 (aggravated kidnapping). The 2007 version of Utah Code section 76‐5‐302, which
provided for an enhanced sentence for aggravated kidnappings resulting in serious
bodily injury, was raised for the first time at Bryant’s sentencing hearing. This occurred
long after Bryant’s convictions by the jury, and therefore it does not affect our
confidence in the jury’s verdict.

IV. Witness Unavailability

¶29 Bryant next argues that the district court abused its discretion in determining
that his son DJ was unavailable to testify at trial and allowing DJ’s preliminary hearing
testimony to be played for the jury. On appeal, Bryant’s characterization of the entire

20090107‐CA 10
circumstances surrounding the district court’s unavailability decision is, “The
prosecution subpoenaed [DJ] to testify at the jury trial, but he failed to appear.” Bryant
argues that DJ’s simple failure to comply with the State’s subpoena does not establish
that it was “practically impossible to produce the witness in court.” See State v. Menzies,
889 P.2d 393, 402 (Utah 1994) (internal quotation marks omitted).

¶30 Bryant’s appellate brief substantially misrepresents the totality of the
circumstances presented below and fails to address the actual grounds for the district
court’s ruling. The State did subpoena DJ and personally served him after locating him
in Arizona. DJ, who was apparently known for his drug lifestyle and transience,
refused to give the process server a phone number or address where he could be
located. But Bryant’s defense team also wanted DJ to testify and made its own efforts to
secure DJ’s attendance at trial. The defense was in contact with DJ in the weeks before
trial and sent its investigator to pick him up on the first morning of trial. The
investigator was unable to locate DJ, and the district court issued an arrest warrant for
DJ at the defense’s request. Later that day, Bryant’s investigator spoke with DJ by
phone, and DJ informed the investigator that he feared arrest on the warrant if he went
to court. The district court then telephoned DJ on the record and assured him that he
would not be arrested if he came to court and testified. DJ agreed to come to court, and
the investigator immediately went to get him, but when the investigator arrived at the
arranged meeting place, DJ was not there. The investigator spent thirty minutes at the
meeting place calling DJ’s name and trying to locate him, but DJ could not be found. At
this point, the district court made its unavailability determination, stating, “We did
everything we could to encourage [DJ]” to appear.

¶31 Clearly, there was much more to the district court’s unavailability determination
than DJ’s simple failure to comply with the State’s subpoena. The extensive efforts
made by the State, the defense team, and the district court all support the district court’s
unavailability determination. By failing to acknowledge and account for the defense
team’s own role in attempting to secure DJ’s attendance, as well as the arrest warrant
and the district court’s phone conversation with DJ, Bryant has failed to address the
grounds upon which the district court actually made its unavailability determination.
Accordingly, we will not disturb the district court’s ruling. Cf. State v. Featherhat, 2011
UT App 154, ¶ 19, 257 P.3d 445 (“When an appellant does not address the grounds

20090107‐CA 11
upon which the district court denies a motion to suppress, we will not disturb the
district court’s ruling.”).6

V. Jury Instructions

¶32 Finally, Bryant argues that the jury was not properly instructed on the rape
charges against him. Specifically, Bryant argues that he was entitled to a lesser included
offense instruction on two of the three rape charges against him, as well as to an
instruction defining “adult cohabitant of a parent” as that term is used in the definition
of a “position of special trust,” see Utah Code Ann. § 76‐5‐404.1(h) (2003) (“‘[P]osition of
special trust’ means that position occupied by a person in a position of authority, who,
by reason of that position is able to exercise undue influence over the victim, and
includes . . . [an] adult cohabitant of a parent.”). Both of these arguments hinge on
Bryant’s assertion that he was not an “adult cohabitant” of Mother for purposes of
establishing that he was in a position of special trust as to B.S. Bryant argues on appeal
that the status of “adult cohabitant” requires a sexual or marriage‐like relationship
between two cohabiting adults, whereas his relationship with Mother was platonic, and
they lived together only as roommates.

¶33 We decline to directly address the district court’s failure to instruct the jury on
the definition of an adult cohabitant because Bryant did not preserve the issue by
objecting to the absence of such an instruction. See generally State v. Rudolph, 970 P.2d
1221, 1227 (Utah 1998) (“[I]n order to preserve an issue involving a jury instruction, the
objecting party must make an objection in the trial court, stating distinctly the matter to
which he objects and the ground of his objection.” (emphasis omitted) (internal
quotation marks omitted)). Further, Bryant’s counsel invited any such error when the
district court asked, “Do we have any exceptions or objections to these instructions as
now prepared?” and counsel responded, “No your honor, they appear to conform to the
code.” See generally Featherhat, 2011 UT App 154, ¶ 14 (explaining that alleged errors in
jury instructions are invited when counsel represents to the trial court that there is no
objection to the instructions). Because Bryant failed to preserve this issue by timely
objection, see Rudolph, 970 P.2d at 1227, and invited any resulting error, see Featherhat,
2011 UT App 154, ¶ 14, we decline to examine the district court’s failure to give a
specific instruction on the definition of an adult cohabitant.

6. We also observe nothing in the record that suggests to us that the efforts of the
parties and the district court did not constitute “every reasonable effort” to secure DJ’s
attendance at trial. See State v. Menzies, 889 P.2d 393, 402 (Utah 1994).

20090107‐CA 12
¶34 Nevertheless, the definition of “adult cohabitant” is central to Bryant’s other jury
instruction argument: that he was entitled to a lesser included offense instruction for
the two rape charges arising from sexual encounters with B.S. that occurred while
Bryant and Mother were residing in the same house.

When a defendant requests an instruction on a lesser
included offense, “it must be given if (i) the statutory
elements of greater and lesser included offenses overlap to
some degree, and (ii) the evidence provides a rational basis
for a verdict acquitting the defendant of the offense charged
and convicting him of the included offense.”

State v. Spillers, 2005 UT App 283, ¶ 15, 116 P.3d 985 (quoting State v. Hansen, 734 P.2d
421, 424 (Utah 1986)). Bryant argues that there was a rational basis in the evidence for
the jury to find that he was not an adult cohabitant of Mother, and therefore not in a
position of special trust as to B.S., and therefore guilty only of the lesser included
offense of unlawful sexual activity with a minor rather than rape. See generally Utah
Code Ann. § 76‐5‐401 (2008) (defining unlawful sexual activity with a minor); id. § 76‐5‐
402 (defining rape); id. § 76‐5‐404.1(h) (defining “position of special trust” to include
adult cohabitants of a minor’s parent); id. § 76‐5‐406 (defining lack of consent).

¶35 Bryant contends that a jury could have found that he and Mother were not
cohabitants because their relationship was not sexual or marriage‐like in nature. See
generally Black’s Law Dictionary 260 (6th ed. 1990) (defining cohabitation, in part, as
“[t]o live together as husband and wife”). However, the district court rejected Bryant’s
interpretation of cohabitation for purposes of establishing a position of special trust,
stating that “in the domestic violence code, a co‐habiting is anybody under the same
roof.” Although the district court’s formulation of cohabitation may have been
somewhat overbroad, this court has subsequently held that, in this context, cohabitation
is established merely by two persons residing together without any requirement of a
sexual or marriage‐like relationship. See State v. Watkins, 2011 UT App 96, ¶¶ 9–16, 250
P.3d 1019, cert. granted, 262 P.3d 1187 (Utah 2011).

¶36 In State v. Watkins, 2011 UT App 96, 250 P.3d 1019, this court recognized that the
“the meaning of [cohabitation] depends upon the context in which it is used.” Id. ¶ 12
(alteration in original) (internal quotation marks omitted). In the “position of special
trust context,” id. ¶ 14, the court stated that “defining cohabitants as those who ‘reside[]
or ha[ve] resided in the same residence’ is a reasonable definition . . . because it is

20090107‐CA 13
consistent with the plain meaning of cohabitant,” id. (alterations in original) (citation
omitted). After examining the various definitions of residency, the court concluded,
“Although a person may live somewhere temporarily, if he dwells there continuously
and he treats the place as his home, he may be considered a resident of the place for
purposes of determining whether he is a cohabitant of other individuals living there.”
Id. ¶ 16. The court then determined that evidence indicating “that Watkins lived with
[the victim’s father] full‐time, had his own room, and paid rent . . . was sufficient
evidence that he was a resident of the home and, therefore, a cohabitant of [the victim’s
father].” Id. (emphasis added).

¶37 In this case, it is undisputed that Bryant and Mother resided together at the time
of the incidents underlying the two rape charges at issue. Bryant’s assertion that his
living arrangement with Mother was not marriage‐like is supported by the evidence,
but there is no evidence that Bryant did not “dwell[] there continuously and . . . treat[]
the place as his home.” See id. Thus, there was no rational evidentiary basis upon
which the jury could have determined that Bryant was not in a position of special trust
as “a resident of the home and, therefore, a cohabitant of [Mother].” See id.
Accordingly, Bryant was not entitled to a jury instruction on unlawful sexual activity
with a minor as a lesser included offense of rape.7 See generally Spillers, 2005 UT App
283, ¶ 15.
CONCLUSION

7. We also agree with the State that Bryant has completely failed to account for the
possibility that the jury convicted him on these two rape charges based not on his
cohabitancy with Mother but rather on the theory, presented by the State at trial, that
“the victim is 14 years of age or older, but younger than 18 years of age, and the actor is
more than three years older than the victim and entices or coerces the victim to submit
or participate” in the sexual activity. See Utah Code Ann. § 76‐5‐406(11) (2008) (defining
lack of consent); State v. Gibson, 908 P.2d 352, 356 (Utah Ct. App. 1995) (“[T]he
‘enticement’ of a teenager by an adult occurs when the adult uses psychological
manipulation to instill improper sexual desires which would not otherwise have
occurred.”). Bryant’s failure to brief this alternate theory of guilt provides an alternate
basis on which to affirm these two convictions. Cf. State v. Hurt, 2010 UT App 33, ¶ 16,
227 P.3d 271 (“[T]he State correctly asserts that Hurt’s appellate brief fails to even
acknowledge the district court’s reliance on Hurt’s consent, much less present any
reasoned argument or authority against it.”).

20090107‐CA 14
¶38 The district court erred when it applied the 2007 amendment to Utah Code
section 76‐5‐302 to sentence Bryant to life in prison without parole for the aggravated
kidnapping that Bryant committed in 2004. We therefore vacate Bryant’s aggravated
kidnapping sentence and remand for resentencing on that conviction. We also reverse
the district court’s ruling that Bryant’s child abuse conviction merged into his
kidnapping offense and remand for the imposition of a sentence on the child abuse
conviction. In all other respects, we affirm the district court’s judgment.

____________________________________
William A. Thorne Jr., Judge

‐‐‐‐‐

¶39 WE CONCUR:

____________________________________
James Z. Davis, Judge

____________________________________
Michele M. Christiansen, Judge

20090107‐CA 15